an empirical study of empirical legal scholarship- the top law sc

8/13/2019 An Empirical Study of Empirical Legal Scholarship- The Top Law Sc

http://slidepdf.com/reader/full/an-empirical-study-of-empirical-legal-scholarship-the-top-law-sc 1/23

Indiana Law Journal

Volume 81| Issue 1 Article 8

1-1-2006

An Empirical Study of Empirical Legal Scholarshipe Top Law Schools

Tracey E. GeorgeVanderbilt University

Follow this and additional works at:h p://www.repository.law.indiana.edu/iljPart of theLegal Education Commons

is Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact wa [email protected].

Recommended CitationGeorge, Tracey E. (2006) "An Empirical Study of Empirical Legal Scholarship: e Top Law Schools," Indiana Law Journal: Vol. 81:Iss. 1, Article 8. Available at:h p://www.repository.law.indiana.edu/ilj/vol81/iss1/8

http://www.repository.law.indiana.edu/ilj?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://www.repository.law.indiana.edu/ilj/vol81?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://www.repository.law.indiana.edu/ilj/vol81/iss1?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://www.repository.law.indiana.edu/ilj/vol81/iss1/8?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages


http://network.bepress.com/hgg/discipline/857?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:[email protected]


http://www.law.indiana.edu/lawlibrary/index.shtml?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:[email protected]


http://network.bepress.com/hgg/discipline/857?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages



http://www.repository.law.indiana.edu/ilj/vol81/iss1?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://www.repository.law.indiana.edu/ilj/vol81?utm_source=www.repository.law.indiana.edu%2Filj%2Fvol81%2Fiss1%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages


http://localhost/var/www/apps/conversion/tmp/scratch_2/?utm_source=www.repository.law.indiana.edu/ilj/vol81/iss1/8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://localhost/var/www/apps/conversion/tmp/scratch_2/?utm_source=www.repository.law.indiana.edu/ilj/vol81/iss1/8&utm_medium=PDF&utm_campaign=PDFCoverPages



An Empirical Study of mpirical Legal Scholarship:The Top Law Schoolst

TRACEY E GEORGE*

For the rational study of the law[,] the man of the future is the man ofstatistics and the master of economics.'

- Oliver Wendell Holmes (1897)

[I]t is vitally important to determine whether the law is based on soundassumptions about how the world works and to what extent a particularlaw or process is achieving its stated objective and at what cost. 2

N. William Hines, President of Association ofAmerican Law Schools (AALS) (2005)

Empirical legal scholarship (ELS) is arguably the next big thing in legal intellectualthought. ELS, as the term is generally used in law schools, refers to a specific type ofempirical research: a model-based approach coupled with a quantitative method. Th eempirical legal scholar offers a positive theory of a law or legal institution and thentests that theory using quantitative techniques developed in the social sciences. Th eevidence may be produced by controlled experimentor collected systematically fromreal world observation. In either event, quantitative or statistical analysis is a centralcomponent of the project.

Empirical research in law is not new.3 Law professors, in the past, offered statisticalstudies on issues small, say parking violations in New Haven in the 1940s, 4 and large,

such as jury versus judge verdicts in criminal trials.5 Despite Holmes's forecast,however, work of this type was uncommon in law schools through most of the lastcentury.6 Few legal scholars published empirical studies in law reviews, the primary

t Copyright 2006 Tracy E. George. All rights reserved. Professor of Law, Vanderbilt University. My thanks to the organizers of the Indiana

Law Journal Symposium on The Next Generation of Law School Rankings, including PaulCaron, Rafael Gely, Bill Henderson, andJeff Stake. I benefited from thoughtful comments byPaul Edelman, Ted Eisenberg, Chris Guthrie, Russell Korobkin, Bert Kritzer, Bob Lawless,

Mark Lemley, Andy Morriss,Margo

Schlanger,Michael Solimine, and symposium organizers

and attendees. Judy Rose of the Law & Society Association and Tracie Thomas of AALSoffered valuable data about their respectiveorganizations. Sarah Krause, Swarna Vallurupalli,and Dawn Johnson provided excellent research assistance.

1. Oliver W. Holmes, Jr., The Path of the Law 10 HARV L. REv. 457,469 (1920).2. N. William Hines, President, AALS, Opening Speech at the AALS 2005 Annual

Meeting (Jan. 2005).3. Social scientists were conducting empirical studies of law and/or legal institutions

throughout this period. I am interested here in law professors undertakingsuch work.4. See Underhill Moore & Charles C. Callahan, Law and Learning Theory: A Study of

Legal Control, 53 YALE L.J. 1 (1943).5. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY (1966).6. See Robert W. Gordon, Lawyers, Scholars, and the Middle Ground, 91 MICH. L.

REv. 2075, 2085 (1993) (arguing that empirical research remains to this day the most neglected

and ridiculously undervalued as well as the most potentially fruitful branch of legal studies ).



INDIANA LA WJOURNAL

forum for legal academic discourse. Doctrinal workdominated legal scholarly writings,and it still does.7 But ELS recently and dramatically has expanded in law reviews,8 atconferences,9 and among leading law faculties.'0 William Hines, the current Presidentof he Association of American Law Schools (AALS), has ordained ELSas the central

theme of his tenure.' This paper evaluates law schools based on their place in the ELSmovement and offers an essential ranking framework that can be adopted for othermovements as well.

A scholarly movement ranking offers two contributions to law school rankingsbeyond merelyproviding intriguing substantive results: a quasi-prospectiveperspectiveand an intellectual-environment evaluation.' 2 Most rankings of law schools areinherently retrospective.They are built on essentially lagged variables, includingpolls,incoming student qualifications, and graduating students' job and ba r successes. Forty

7. See id. at 2100 (observing that doctrine is still the staple commodity, even in thereviews edited at fancy schools that go in for the fancy new stuff ); Peter H. Schuck, WhyDon tLaw Professors Do More Empirical Research?, 39 J LEGAL EDUC. 323, 329 (1989) ( [T]woforms of legal writing-doctrinal and theoretical-account for almost the entire corpus of legalscholarship. Only a tiny fraction is devoted to the gathering of new facts about how law actuallyoperates and affects us. ) (emphasis in original); but see Harry T. Edwards, The GrowingDisjunction Between Legal Education and he Legal Profession, 91 MICH. L. REv. 34 (1992)(criticizing legal scholarship for, amongother things, a lack of attention to legal doctrine).

8. For example, the University of Illinois Law Review devoted its 2002 symposium to thetopic. Symposium,Empirical and Experimental Methods in Law, 2002 U. ILL L. REv. 791. Seealso Richard H. McAdams & Thomas S. Ulen, Introduction to Symposium on Empirical and

Experimental Methods in Law, 2002 U. ILL. L. REv. 791, 791 (explaining the motivations forthe symposium including the seeming increase in empirical methods in legal scholarship);Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the ScientificMethod in the Study of Law, 2002 U. ILL. L. REv. 875, 909-14 (considering in more detail theclaim of increased empiricism in law). ELS also will be the focus of Vanderbilt Law Review supcoming symposium, Crunching the Numbers on Empirical Legal Scholarship.

9. The Law and the Social Sciences and Scholarship Sections of the AALS co-sponsored aprogram examining New Approaches to Empirical Legal Research at the 2001 AnnualMeeting, and the AALS 2006 Annual Meeting will take ELS as its primary focus.

10. Harvard University, Northwestern University, the University of California at Lo sAngeles, and Washington University in St. Louis, among others, have ELS working groups,

seminars, and/or centers. See infra note 40 .11 He selected the theme because it would continue AALS s effort to solidify the claimthat [it is] indeed THE learned society of scholars for the discipline of aw in the United States.N. William Hines, The President s Message: Empirical Scholarship: What Should We Studyand How Should We Study It?, NEWSLETTER (AALS, D.C.), Feb. 2005, at 1-3 (emphasis inoriginal).

12. I suppose it also may offer a third contribution: it encourages empirical legalscholarship. Or, more precisely, it encourages those activities-hiring social scientists andsupportingpublication in peer-reviewed, interdisciplinaryjournals-that I argue foster ELS. fRussell Korobkin, In Praise of Law School Rankings: Solutions to Coordination and CollectiveAction Problems, 77 TEx. L. REv. 403,417-22 (1998) [hereinafter Korobkin, In Praise ofLawSchool Rankings] (arguing that the inclusion of faculty academic reputation in a ranking induceslaw schools to support scholarship); Russell Korobkin,Ranking Journals: Some Thoughts onTheory and Methodology, 26 FLA. ST. U. L. REv. 851, 857-60 (1999) (describing the incentivescreated by ranking academic journals).

[Vol. 81:141



EMPIRICAL LEGAL SCHOLARSHIP

percent of the US ews World Report ( US. News ) ranking, forexample, is basedon surveys of senior members of law schools, firms, or courts.' 3 These respondents arelikely to be disproportionately influenced by significant events, such as facultypublications or lateral hires, from the respondent s formative years rather than recentones. j Students make application and enrollment decisions based on previous years'published rankings. A school s bar passage rate is related to the quality of graduatingstudents, which in turn depends in part on the school s ranking three or more yearsearlier. Law firms and other employers generally prefer to hire students from higher-ranked schools; accordingly, placement is a product of a school s ranking at the time ofthe significant hiring decision (usually fall of the second year). Such a retrospectiveapproach may provide informationabout where to find the best law students and thuswould be sufficient to serve the purposes of the legal job market.1 5 But it is relativelyinsensitive to changes in a school s intellectual life.16 The ELS ranking, by contrast,recognizes schools that are intellectual leaders in an emerging field.

An ELS ranking also offers insights to the intellectual life at law schools. With anyrelatively new school of thought, there is interest in its development and sources. Thisranking offers that information, highlighting new scholarly leaders. Moreover, ascholarship-based approachalso may contribute indirectlyto the intellectual richnessof law schools. Rankings provide incentives to take actions to improve one s positionin that ranking.' 7 A ranking based on a school s intellectual environment shouldencourage schools to produce legal scholarship, a valuable public good, and a rankingbased on emerging ideas will create an incentive to be part of new fields.

13 The exception is the U S ews practice of soliciting feedback from one newly tenuredperson. The other surveyed faculty members are the Dean, academic associate deans, and chairof faculty appointments-all typically filledby tenured professors in the profession more thanten years. See Law Methodology, in AMERICA'S BEST GRADUATE SCHOOLS 2006 2005),http://www.usnews.com/usnews/edu/grad/rankings/about/06lawmethbrief.php. Similarly, thesurveyed legal professionals are a sample of aw firm hiring partners, state attorneys general,and federal and state judges. Id These lawyers are senior members of the profession.

14. Respondents will be inclined to recall information about a school s scholarly outputbased on its consistency with their existing beliefs about that school s intellectual reputation.

Those beliefs begin to form early in a person s professional career; thus, a person s presentopinion about a law school s relative status will behighly correlated or even the product of herpreliminary view.

15 See Korobkin, In Praise of Law School Rankings, supra note 12, at 409-14, 426 1998). Korobkin explains how rankings coordinate the channeling of the most capablestudents to the most desirable legal employers. Id. at 426.

16. Professors may make career decisions-for example, where to move-based at least inpart on these same rankings. Thus, law school rankings affect the contribution of new blood to aschool s intellectual life. I think an intellectual-movement ranking (such as the ELS ranking),however, measures that effect more directly than rankings intended primarily for students.

17. Russell Korobkin, in his keynote address, argued that we can harness the positive powerof law school rankings. He observed in his comments and in his published paper thatscholarship is a public good unique to law schools. Therefore, rankings that encourage theproduction of this good are valuable. Russell Korobkin Keynote Address, Harnessing he

Positive Power of Rankings: Response to Posner and Sunstein, 81 IND. L.J. 35,44-45 2006).

6]



INDIANA LA WJOURNAL

A law school's intellectual life and academic reputation depend in significantmeasure on the scholarly activities and status of the faculty.' 8 Academic reputations inturn often depend on participation in the leading debates of the day. The closeconnection between an individual scholar's success and her institution's status m ay be

seen in the association of intellectual movements with particular law schools: legalprocess and Harvard, legal realism and Yale, law and society and Wisconsin, law andeconomics and Chicago, critical legal studies and Stanford. Withwhich school will weassociate empirical legal scholarship?

The present article proceeds in three parts. Part I offers an account of the rise ofELS in order to support, albeit briefly, my claim that ELS is the most significantemerging intellectual movement. Part II presents measures for law schools that fosterand promote an intellectual movement, ELS in particular. Part III offers empiricalfindings as well as methodological details. I conclude with a consideration of howthings may change over the next few years.

I. A BRIEF INTELLECTUAL HISTORY OF EMPIRICAL LEGAL SCHOLARSHIP

Law professors dating back to Holmes have looked to non-law disciplinesto informtheir analyses of legal questions. But while other academic fields increasingly adoptedthe scientific method during thetwentieth century,19 law did not.20 Non-law academicresearch in the physical and social sciences focused on formulating hypotheses andtesting them against relevantdata collected through observation and experiment. Mostacademic law writings,by contrast, concentrated onlegal issues and evaluated them inthe same way as judges writing opinions.2 '

Legal realism was the first movement likely to bring empiricism to law. Indeed

many legal realists expectedempirical research to reveal the true nature of law.22 These

18 Cf Paul L. Caron Rafael Gely, WhatLaw Schools Can Learn rom BillyBeane andthe OaklandAthletics 82 TEX L. REV 1483, 1525-30 (2004) (examining trends in explicitlyranking law schools based on the performance of individual professors).

19 For an account of the rise of social science in American universities, see MARYFURNER, ADVOCACY AND OwEcTIViTy: A CRIsIs IN THE PROFESSIONALIZATION OF AMERICAN

SOCIAL SCIENCE, 1865-1905 (1975); THOMAS L. HASKELL, THE EMERGENCE OF PROFESSIONALSOCIAL SCIENCE: THE AMERICAN SOCIAL SCIENCE ASSOCIATION ND THE NINETEENTH-CENTURY

CRISIS OF AUTHORITY (1977); DOROTHY Ross, THE ORIGINS OF AMERICAN SOCIAL SCIENCE(1991).20. See Hines, supra note 11, at 4 (remarking on a near consensus [among prominent legal

scholars in the mid-1990s] that there was a need for a much greater emphasis on empiricalresearch in law ).

21. See Richard A. Posner, Legal Scholarship Today 115 HARv. L. REV. 1314, 1315(2002) (explaining that law professors adopted, and continue to adopt, the methods ofargument and proof as found in judicial opinions because they seek to affect judges and other

influential lawyers).

22. See e.g. KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS(1960). In this discursive, Toynbeean text ontesting the method of American legal realism,Llewellyn delineated and captured the primary themes of realism and provided descriptiveaccounts of different appellate courts tosupport the behavioral implications of hese themes. Seeid. Law reviews devoted much space-sometimes entire issues-to such work. See e.g.Symposium, Empirical Approaches to Judicial Behavior 42 U. CN. L. REV. 589 (1973);

[Vol. 81:141




scholars frequently did look to other disciplines for their studies, but very few engagedin observational studies. 23 The empirical ambitions of legal realism went unrealized.The realist revolution, however, did improve the chances for ELS by opening legalscholarship to the views of other academic fields.

Law and economics was one of the early heirs of realism and also appeared likely tolead to increased levels of ELS.24 Legal scholars have embraced microeconomictheory, notably the rational actor paradigm, since at least the early 1980s, 25 but ost ofthat work remained primarily theoretical. Law professors used economic theory toevaluate how rules could work,but they failed to test whether such rules led in fact tothe hypothesized results. The resulting scholarship lacked empirical data to supportfoundational assertions or tests of essential hypotheses.26

The law and society movement also grew in the post-realist legal academy. AsLawrence Friedman, a founder, explained, law and society participants share[d] acommitment to explain legal phenomena (though not necessarily all legal phenomena)in terms of their social setting. 27 The Law SocietyAssociation embraced empiricalscholarship of every conceivable type. The group started small, with 150 registrants atits first meeting in 1975, but more than doubled by 1985 to approximately 350registrants and again by 1995 to approximately 800.28 The Law SocietyAssociation s intellectual inclusivenessallows it to continue to grow in influence (morethan one thousand people registered for the 2005 meeting), but prevents it from having

Symposium, Social Science Approaches to the Judicial Process 79 HARv. L. REV. 1551 (1966).For a discussion of his period, see Richard A. Posner, The Decline of Law as an AutonomousDiscipline: 1962-1987 100 HARv. L. REv. 761 (1987) [hereinafter Posner, Decline].

23. See generally LAURA KALMAN, LEGAL REALISM AT YALE 1927-1960 (1986); JOHN

HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995) (offering acareful examination of the role of empirical methodology in realist scholarship).

24. See e.g. GuiDo CALABREsI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC

ANALYSIS (1970); RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1st ed. 1972).25. For competing studies of the trajectory of law and economics, compare William M.

Landes Richard A. Posner, The Influence of Economics on Law: A Quantitative tudy 36 J.L. ECON 385, 424 (1993) (arguing that the influence of economics on law as reflected incitation trends was growing at least through the 1980s ), with Robert C. Ellickson, BringingCulture and Human Frailty o Rational Actors: A Critique of Classical Law and Economics 65CHi.-KENT L. REv. 23, 26-34 (1989) (concluding that law and economics, after a period of

dramatic growth in the 1960s and 1970s, was in a period of steady-state by the 1980s), OwenM. Fiss, The Law Regained 74 CORNELL L. REv. 245 1989), and Morton J. Horwitz, Law andEconomics: Science or Politics? 8 HOFSTRA L. REV. 905 (1980) (claiming that the movementwas in decline by the 1980s). More recently, Ellickson has concluded that law and economicsseems to have been slowly gaining yet more ground in law reviews, particularly during 1991-96, based on various proxies such as references to game theory and human capital. Robert C.Ellickson, Trends in Legal Scholarship: A Statistical Study 29 J. LEGAL STUD. 517, 524-25(2000) [hereinafter Ellickson, Trends in Legal Scholarship].

26. See generally Russell Korobkin, A Multi-Disciplinary Approach to Legal Scholarship:

Economics Behavioral Economics and Evolutionary Psychology 41 JURIMETRICS J. 319,320-23 (2001) (characterizing law and economics scholarship as primarily deductive).

27. Lawrence M. Friedman, The Law and Society Movement 38 STAN. L. REv. 763, 763

(1986).28. See e-mail from Judy Rose, Law Society Association, toTracey E. George, Professor

of Law, Vanderbilt University (July 7, 2005) (on file with author).

6]



INDIANA LA WJOURNAL

an intellectual framework. Today, it includes ELS as well as many other distinctivemethods that share only a context matters perspective.

ELS as an intellectual movement does not and cannot include all legal academicwork that makes empirical claims. Nearly all law review scholarship offers somestatement about the real world, and thus has an empirical component.29 Doctrinalwork, for example, builds on the author s account of existing law in order to proposethe best legal solution to a question. ELS scholars, unlike doctrinalists, take a primarilypositive approach and utilize the scientific method to evaluate the relevant evidence.But, unlike most social scientists, ELS scholars generally offer some connectionbetween their positive results and normative alternatives. ELS has various strands:behavioral law and economics, judicial politics, positive political theory, experimentaleconomics, and so on

AALS is focusing its attention this year on ELS. AALS President N. William Hineshas chosen as the theme for the 2006 AALS annual meeting Empirical scholarship:what should we study and how should we

study it? And AALS has had a sectiondevoted to social science technique since 1982, when it established the Law and theSocial Sciences section to promote communication among those persons who areinterested in using the empirical techniques of the social sciences to study legalproblems and institutions.'

Robert Ellickson, in a recent citation analysis of trends in legal scholarship, foundthat number crunching is rising in law journals. 32 He created a proxy to measure thenumber of articles reporting empirical results: inclusion of the words statisticalsignificance (or some variant) or Table 1 033 The number of articles with either termnearly doubled from 1982 to 1996.34 However, the frequency of references to empirical or quantitative stayed constant during this time, leading Ellickson to

conclude that scholars are increasingly likely to produce their own empirical researchbut not to cite such work by others.35

29. Professors Lee Epstein and Gary King make this point effectively in an article arguingthat because nearly all legal scholarship makes empirical claims, it must also satisfy basicinferential rules. Lee Epstein Gary King, TheRules ofInference 69 U. Cam. L. Rrv. 1 2002).

30. See e.g. Christine Jolls,Cass R. Sunstein Richard Thaler, A BehavioralApproacho

Law and Economics 50 STAN. L. REv. 1471, 1476, 1500 (1998) (explaining that whereas muchof law and economics builds on a hypothetical rational actor, behavioral aw and economics(BLE) considers whether real people behave consistently with the rationality assumptions and,unlike most law and economics scholars, BLE scholars test the predictions of heir models).

31. roposed Bylaws of the Section on Law and the SocialSciences BYLAws (Ass'n ofAm. Law Sch., D.C.), June 1985, at 1, 1 (on file with author). Past chairs of the section havecome from an array of law schools with three of the last ten from Comell University (ProfessorsRachlinski in 2004, Heise in 2000 while he was at Case Western University, and Eisenberg in1996). Seee-mail from Tracie Thomas, Senior Meeting Manager, AssociationofAmerican LawSchools, to Tracey E. George (Feb. 15 2005) (on file with author).

32. Ellickson, Trends in Legal Scholarship supra note 25, at 528-30 (analyzing data fromWestlaw's JLR database).

33. d

34. See id. at 528-29 tbl.4.35. Id. at 528.

[Vol. 81:141



EMPIRICAL LEG L SCHOLARSHIP

I provide an approximation of the Ellickson figures on ELS to determine whathaspassed in the nearly ten years since his study ended.36 Table 1 reports the results: thenumber of references to ELS phrases--empiric, empirical, quantitative, statisticallysignificant, statistical significance, Table 1--continues to grow. (The last column is

based on approximately two years' worth ofjournals, reflecting the lag in real, ratherthan printed, publication dates.)

Table 1. ELS references in law reviews: An Ellickson-based score

1994-1996 1997-1999 2000-2002 2003 6/2005

empiric 9003 10188 11245 9689

quantitat 3462 3734 4 77 353

statistic ignifican 1363 1613 1825 1532

Table 2 31 2237 2788 384

NOTE There is a small difference between my results for1994-1996 and Ellickson's for the same period,which maybe due to error from his use of a "deflator" to allow comparisons across time despite changes inthe composition of JLR, or from the addition of documents from th t time period after he ran his search.Frequently editorial boards publish volumes monthsor even years late, but their publication dateremains thedate printed on the volume ratherthan the actual date of release. This fact also makes it difficult to comparethe most recent period (and last column) to earlier periods.

The phrase "statistical significance"and its variants may be the best proxy for ELSwork because the expression is most likely to appear in articles that includequantitative analysis. (ELS work may refer instead to theparticular test statistic used.Or the article may describe the concept in more meaningful terms for a lay audienceand to avoid confusion with practical significance.) We can see yearly increases in"statistical significance" mentions from 1990 in figure 1.

7

6

3

s 4

300-

0

100-

o 19 1 93 95 97 99 2 1 2003

199 92 94 96 98 2 2 2

Figure 1. Number of references over timeto "statistic significan " in Westlaw s JLR database.

36. The search for references to "empiric " required that I search by individual years to

overcome the 10 000 list limit in Westlaw. To locate documents citing "statistical significance"and its variants, I ran the following search in Westlaw s JLR database: date(>[year prior tobeginning date] and <[year following ending date]) (statistic /1 significan ).

2006]



INDIANA LA W JOURNAL

II. THE RANKING EQUATION

Several schools are highly visible in empirical legal scholarship.37 The University of

Chicago and Cornell University publish journals in the field.38 NorthwesternUniversity, the University of Pennsylvania, and the University of Southern California(USC) routinely hire entry-level candidates with social science doctorates.39 HarvardUniversity, the University of California at Los Angeles (UCLA), and WashingtonUniversity in St. Louis have working groups focused on ELS.40 A ranking of a large

37. Interestingly, the present symposium could have served as an ELS meeting groundbecause many participants engage in ELS: Scott Baker, Paul Caron, Ted Eisenberg,Rafael Gely,Bill Henderson, Russell Korobkin, Andy Morriss, Michael Solimine,and so on.

38. The University of Chicago began publishing the Journal of Law and Economics in 1958and the Journal of Legal Studies in 1972, and Cornell University started the Journal ofEmpirical Legal Studies in 2004.

39. Lawrence Solum reported on Hiring Trends at 18 'Top' American Law Schools in hisLegal Theory Blog. The data includes all professors who were hiredbetween the 2000 and2004academic years and were still on a school's faculty at the end of the period. (For example,Richard Brooks, who was hired by Northwestern University in 2000 and moved to YaleUniversity in 2003, is included in Yale s number but not in Northwestern s.) He found thatmore than half of these hires at the University of Pennsylvania, the University of SouthernCalifornia, Northwestern University, Stanford University, the University of Michigan, Columbia

University, and Yale University held non-law doctorates (in descending order). LawrenceSolum, Hiring Trends at 18 Top American Law Schools LEGAL TH ORY BLOG,http://lsolum.blogspot.com (July 19, 2004, 11:24 EST).

40. Harvard s Program on Empirical Legal Studies (PELS) promotesthe use of empiricalanalysis in legal scholarship and teaching.... PELS' activities focus on four mainareas: 1) Theperformance of the legal system.... 2) Health, safety, and environmental risks 3) Empiricalanalysis of work-family interactions 4) Original data development. Harvard University,Program on Empirical Legal Studies, http://www.law.harvard.edu/programs/pelslabout.htm (lastvisited Sept. 18, 2005). UCLA s Empirical Research Group(ERG), is a methodology-orientedresearch center at the UCLA School of Law. It specializes in the design and execution ofquantitative research in law and public policy, and enablesthe law faculty to include robustempirical analysis in their legal scholarship. UCLA School of Law, Empirical Research Group,http://www.law.ucla.edu/home/index.asp (follow Centers Programs hyperlink; thenfollow Empirical Research Group hyperlink) (last visited Sept. 18,2005); s lso Rick Sander JoeDoherty, ERG: Empirical Research Group UCLA LAW MAGAZINE Fall/Winter 2000-0 l, at 70,available at http://www.law.ucla.edu/administration/publications/alumnimag200l/uclalaw200lpg68-77.pdf. Washington University s Workshop on Empirical Research in theLaw (WERL)

is a group of Washington University legal and social science scholars that haveworked to encourage and facilitate the proper use of empirical methods in legalstudies, and of legal materials in social science work In order to facilitatebetter empirical research in the legal context, WERL leads a yearly mini-course onConducting Empirical Legal Scholarship designed for scholars from across the

country.Washington University in St. Louis, Workshop on Empirical Research in the Law,http://werl.wustl.edu (last visited Sept. 18, 2005). For a similar program at Northwestern

[Vol. 81:141




number of schools requires systematicmeasures-or proxies-for the role of ELS at aschool.

My scholarly movement ranking focuses on faculty because theyare the source of aschool's intellectual life. The advantages of a faculty-based as opposed to a program-

based measure are as follows: 1) it reflects the amount of money committed to anintellectual activitybecause hiring requires salaries and benefits, whereasworkshopsdo not necessarily mean money; (2) faculty reflect a long-term investment wherecenters do not (programs may come and go, but tenure is forever); (3) individuals aremore likely to conduct relevant scholarship now and in the future because they haveinvested in educational development and skills; and (4) professors are the closestmeasure of intellectual environment.

I focus on faculty characteristics related to the intellectual output and environmentof an institution, specifically those variables that affect the faculty's work and reflect itas well: education, institutionalroles, and publications. Using these categories, I adoptseveral proxies for a strong ELS environment: professors with social sciencedoctorates, 41 professors with secondary appointmentsin social science departments,and publications in journals that publish empirical legal scholarship.

A. Educational Background and Training

Law professors with social science doctorates usually are better positioned toundertake empirical research than are other professors.42 Law schools generally do not

University, see Northwestern University School of Law, Empirical Legal Studies,http://www.law.northwestem.edu/colloquium/empirical (last visited Sept. 4, 2005).

41. Social sciences in the present study are anthropology (or cultural or socialanthropology), economics (or agricultural economics), linguistics, political science (orgovernment, politics,or political economy), psychology(or social psychology), sociology,andstatistics. I also include some uncommon doctoral programs thatrely on social science theoryand methodology: the University of California, Berkeley Law School Ph.D. in Jurisprudenceand Social Policy (JSP), the University of Pennsylvania Ph.D. in Criminology, and theUniversity of Pennsylvania Wharton School Ph.D. in Business and Public Policy. See UCBerkeley School of Law, Jurisprudence and Social Policy: A Law and Society DoctoralProgram, http://www.law.berkeley.edu/academics/jsp (last visited Sept. 4,2005) ('The programpromotes the study of legal and political institutions throughthe perspectives and methods ofcriminal justice, economics, history, philosophy, political science and sociology. The JSPprogram core faculty accordingly consists of humanists and social scientists who combinescholarship and teaching in their own disciplines with the study of law. ); University ofPennsylvania Department of Criminology, Ph.D. in Criminology, http://www.crim.upenn.edu/phd.htm (last visited Sept. 4, 2005) ( Penn's 21st Century Ph.D. incriminology explores the frontiers between sociology and demography w ith medical, legal,neurological, genetic and psychological perspectives on crime and crime prevention. .);Wharton Doctoral Programs, Business and Public Policy, http://www.wharton.upenn.edu/doctoral/programs/business (last visited Sept. 4, 2005) ( The Business and Public Policyprogram trains students to use economic tools to analyze problems in business and publicpolicy. Students are also encouraged todraw on other social science perspectives (e.g. politicalscience and decision sciences). The program seeks to prepare students for research careers. ).

42. See Michael Heise, TheImportance of Being Empirical 26 PEPP. L. REv. 807, 817-18

(1999) (considering lack of raining as one of the various explanations for the dearth of ELS);Craig A. Nard, Empirical Legal Scholarship: Reestablishing a Dialogue Between theAcademyand he Profession 30 WAKE FOREST L. REv. 347, 362 (1995) (reporting, based on a telephone

6]



INDIANA LA WJOURNAL

teach courses in survey methodology, statistical analysis, or research design. Graduatesocial science programs do. Indeed, it would be nearly impossible today to get adoctorate in a social science without completing a mathematical methods sequence.(Masters programs, by contrast, do not necessarily require these courses.) Thus, a law

school with a greater proportion of ts faculty holding social science doctorates is morelikely to produce ELS than a law school with a lower proportion.

The number of social scientists on a law faculty is also evidence of a positive ELSenvironment for the entire faculty. Non-social scientistsbenefit from the presence ofsocial scientists for informal interactions, such as advice on how to undertake anempirical project or what method would be appropriate, and for formal collaborations,such as co-authorship. While law professors are much less likely than social scientiststo publish with co-authors, a trend toward increased collaboration can be seen in lawschools.43 Thus, the number of social scientists is a signal that a non-social scientistmay be pursuing an empirical research agenda.

B. Institutional Role

Law professors with appointments in social sciencedepartments would seem morelikely to be engaged in ELS research. Likewise, a law school with close ties to socialscience departments is more likely to support social science research. Such jointappointments are a signal of interdisciplinary spirit at the school as well as increasedprospects for cross-fertilization. Of course, an appointmentdoes not equate to activityin another department, no r does it require engagement in empirical scholarship. But, asa proxy, this measure tells us somethingabout a school.

Law schools that extend secondary or courtesy appointments to social science

professors also are more likely to be receptive to interdisciplinary work that includesempirical research and quantitative methods. However, such courtesy appointments inlaw are less significant than tenure-track appointments. For that reason, my m easurefocuses only on professorswhose primary appointment is in law.

C Scholarship

Evaluating law schools and other academic departments based on researchoutput isa well-established practice.44 Ranking schools based on scholarly production is both(relatively) appealing and familiar. By recognizing institutionsbased on scholarship,

survey of forty law professors selected at random from twenty schools, that nearly 90 thought there is a lack or shortage of empirical research in legal scholarship, and more than 80% ofthat group attributed the lack of research to lack of raining ).

43. See Tracey E. George Chris Guthrie, Joining Forces: The Role of Collaboration nthe Development of Legal Thought 52 J. LEGAL EDUC. 559 (2002).

44. See e.g. Brian Leiter, Measuringthe Academic Distinction of Law Faculties 29 J.LEGAL STuD. 427 (2000); Michael J. Ballard Neil J. Mitchell, The Good the Better and heBest in Political Science 31 PS: POL SCl POL 826 (1998) (ranking American universitypolitical science departments based on work in nine elite journals); Richard Dusansky

Clayton J. Vernon Rankings of U S Economics Departments 12 J. EcON. PERSP. 157, 157-65(1998) (offering two publication-based rankings of American university economicsdepartments).

[Vol. 81:141




the ranking encourages such work. Moreover, hiring and promotion depend heavilyupon publication. Thus, we understand and believe in its relevance.

The first step is the selection of a measure of scholarly productivity. Most studiesselect a group of relevant publications and code work published there. I chose to

follow this approach, focusing here on journals most likely to publish ELS: faculty-refereed, law and social science reviews.45 Scholars have noted the tremendousexpansion in the number of faculty-controlled lawjournals since 1970.46 A number ofrefereed journals focus on the intersection of law and one or more social sciences.These journals typically have an editorial board that includes law professors and socialscientists,and they publishwork by both types of scholars. They also are more likely topublish collaborative work, which is a common feature of ELS.47

III. THE FINDINGS

Collecting evidence is a difficult task. The researcher must make justifiabledecisions about where to look, what to include and what to exclude, and how to treatthe typical observation as well as the unusual one. These challenges, along with thetime-intensive nature of data collection, impede much empirical research.The presentstudy is no different. Unlike studies of criminal sentencing or consumer bankruptcies,law school ranking is a subject on which every law professor may claim to have someexpertise. Thus, I proceeded with particular caution in defining and collecting the data.Errors, of course, remain. First I discuss the results for each factor, and then I offer anoverall ranking.

A. The Data

The study includes the forty-one law schools ranked in the top 40 (and ties) in April2004 by U.S. News in its 2005 ranking.48 The relevant variables are based on

45. Rather than focusing on specific periodicals, I could have run searches in onlineperiodical databases for articles that included terms associated with ELS (such as statisticalsignificance ) and were authored by a member of a law school's faculty. I chose the periodical-based approach over the search-term approach for several reasons, the most importantbeing thetime required to undertake a search-term approach for the more than two thousand professorsincluded in this study.

46. See e.g. Roger C. Cramton, The Most Remarkable Institution: The American LawReview 36 J EGAL EDUC. 1,9 (1986) ( Empirical studies dealing with legal institutionsor thelegal profession also find their way increasingly into new specialized faculty-edited journals. );Tracey E. George & Chris Guthrie, An Empirical Evaluation of Specialized Law Reviews, 26FLA. ST. U. L. REv. 813 820 (1999) ( [Mlany faculty have abandoned familiar doctrinalscholarship for new forms of scholarship particularly well-suited topublication in specializedreviews, especially those with peer selection); Posner,Decline, supra note 22, at 779 ( [A]s therise of faculty-edited law journals in the past three decades attests, the focus on scholarlypublication at the academic frontier is gradually shifting from student-edited to faculty-edited,faculty-refereed journals. ).

47. George Guthrie, supra note 43, at 566-68 572-75.48. America s Best Graduate Schools 2005 U.S. NEWS WORLD REPORT Apr. 2005 at

22. I used this ranking both because it was the most recent one available at the time of my study

2006]



INDI N L WJOURNAL

characteristics of a school's 2003-04 research faculty, defined to include any tenure-track, non-emeritus professor whose primary appointment is at the law school.49

Professors who are based in another department are not included.50 This step in thecoding undoubtedly produced some undercounting and overcounting, but, as described

in greater detail in the footnotes, I took several steps to minimize the error.The first ranking considers social scientists on a law school's tenured faculty, listing

all of the schools that made the top 10. Law schools are ranked in table 2 based on theproportion of tenure-track faculty with doctorates in social science fields.51 Forcomparison, the table also includes the average percentage across all forty-one schoolsin the study. Nine of he forty-one schools did not have a single social scientist with atenured appointment in 2003-04.

Table 2. Top 10 faculties by percentage of social science Ph.D.s (2003-04 Faculty)

Rank Law school Percentage

University of California, Berkeley 33%

2-tie George Mason University 24%

2-tie Northwestern University 24%

4-tie Universityof Pennsylvania 21

4-tie Stanford University 21

and because it followed the academic year for which I could last get complete faculty data(2003-04).

49. Most schools follow the naming convention of assistant professor for nontenuredmembers of he tenure-track faculty and associate professor or professor for tenured faculty.But enough variation exists to require examination. My research assistants compiled a list of allfaculty listed with one of those titles in the 2003-04 AALS Directory at each of the forty-onelaw schools ranked in the top 40 (and ties) in the US News 2005 ranking. The AALS Directoryis appealing because the forms completed by schools are the same. However, it had too manyfalse positives nd false negatives to be the sole source of information. To obtain a moreaccurate final list, I revised the list based on faculty biographies posted on each school'swebsite. I treated faculty who taught solely clinical courses or legal research and writing classes

as non-tenure-track, absent contrary evidence thatthey

wereon the tenure-track faculty.

50. Schools use different title conventions for professors with secondary appointments inlaw. Some schools identify them as courtesy, joint, or secondary, while others do not. Inorder to avoid bias resulting from superficial differences, I looked at other indicators of aprofessor's primary tenure home, including the biography posted on the law school's websiteand the other department's website, the professor's participation in administrative positionswithin a department or school, the professor's mailing address, and the classes taught. Anargument can be made that even secondary appointments in law may reflect active engagementin empirical legal scholarship at the law school; however, a secondary appointmentsimply is notas meaningful as a full-time or initial hire who earned tenure in the law school. Indeed, mostsocial science faculty with an appointment in the law school do not also have tenure in thatschool. I recognize that this is not always the case. But the requisite coding requirementsnecessitate a measure that is correct in most cases. Contacting each professor was not feasiblenor necessarily as reliable.

51. For a list of social science fields, see supra note 41.

[Vol 81:141



EMPIRIC L LEGAL SCHOL RSHIP


6 University of Southern California 19

7 University of Wisconsin 17

8-tie Cornell University 16

8-tie University of Michigan 16

1 -tie Columbia University 5

1 -tie University of Illinois 15

Mean for all 4 law schools 9

The second ranking focuses on law professors with secondary appointments in

social science departments, and lists the topten schools during the 2003-04 academicyear. This ranking reflects theenvironment both at the law school and in the college ofarts and sciences. A positive relationship between schools and departments within auniversitywould seem a prerequisite to significant numbers ofjoint appointments. otsurprisingly, law schools with social scientists are much more likely tohave professorswith secondary appointments in social science departments. The proportion of socialscientists is highly correlated with the proportion of social science courtesyappointments (correlation coefficient .81).

Table 3. Top 10 faculties by percentage of social science secondary appointments 2003-04 faculty)


I University of Southern California 16

2 Northwestern University 5

3 University of California, Berkeley 12

4 University of Illinois 9

5 George Mason University 8

6-tie University of Pennsylvania 7

6-tie University of Wisconsin 7

8-tie Cornell University 6

8-tie University of Michigan 6

8-tie Yale University 6

Mean for all 4 law schools

The third ranking is based on publication in leading American reviews. I selectedjournals based on the following criteria: whether the subject matter includes law and at

least one social science, whether the articles are peer-reviewed, whether both lawprofessors and social scientists publish in the journal, whether both law professors and

2006]



INDIANA L WJOURNAL

social scientists serve as editors and referees, and whether the journal is part of a legal

citation index or legal database. 52 The resulting database includes information on allauthors of articles published between 2000 and 2004 in thirteen publications:

* American Law and Economics Review (ALER)53

* Behavioral Sciences the Law (BSL)54

* Journal of Law Economics Organization JLEO)' 5

* Journal of Empirical Legal Studies (JELS)56

* Judicature5 7

* Justice System Journal8

* Law Human Behavior (LHB)59

52. I considered adding others to this list but did not do so because they fell short on one ofthese criteria. For example, I dropped Studies in Law Politics and Society from the study basedon the conclusion that it is more akin to an annually edited book than a submission-drivenjournal.

53. The American Law and Economics Association publishes the American Law and

Economics Review semi-annually. The ALER seeks to distinguish itself from other law andeconomics journals by offering work that is both scholarly and accessible to nonscholars.Princeton Economics Professor Orley Ashenfelter and Seventh Circuit Judge Richard Posnerserve as editors. See American Law and Economics Review, About the Journal,http://www3 oup co uk/jnls/list/alecon/scope/ (last visited Sept. 4, 2005).

54. Behavioral Sciences the Law is a peer-reviewed journal which provides current andcomprehensive information from throughout the world on topics atthe interface of the law andthe behavioral sciences. Wiley, Description: Behavioral Sciences & the Law,

http://www.wiley.com/WileyCDA/WileyTitle/productCd-BSL.html. Published five times peryear, BSL's current editor is Buffalo Law Professor Charles Patrick Ewing. See id.

55. The Journal of Law Economics Organization publishes work from many socialscience fields because organization is read broadly to include scholarship drawing on

political science, psychology, and sociology and as a result the journal is, as the publisherclaims, an interdisciplinary exercise. OUP Journals, The Journal of Law, Economics, andOrganization, http://www.oxfordjournals.org/jnls/list/jleorg/about.html (last visited Sept. 4,2005). Yale Law Professor Ian Ayres is JLEO's present editor. See i

56. Cornell Law School publishes The Journal of Empirical Legal Studies to encourageand promote the careful, dispassionate testing of empirical assumptions. Journal of EmpiricalLegal Studies, http://www.blackwellpublishing.com/journal.asp?ref=-1740-1453&site=l (lastvisited Sept. 4, 2005). Law professors Theodore Eisenberg, Michael Heise, Jeffrey Rachlinski,and Stewart Schwab, and statistics professor Martin Wells serve as co-editors. See i

57 Judicature is a journal of empirical scholarship by lawyers and social scientistsexamining the administration ofjustice. American Judicature Society publishes Judicature ixtimes per year from its relatively new home at Drake University Law School. See AmericanJudicature Society, Information about Judicature http://www.ajs.org/ajs/publications/ajsjudicature.asp (last visited Sept. 4, 2005).

58. The National Center for State Courts publishes scholarship on courts and courtadministration in the semi-annual periodical the Justice System Journal. The articles draw onsocial science methods but are intended for an audience that includes practitioners as well asscholars. National Center for State Courts, Submissions to Justice System Journal,http://www.ncsconline.org/DComm/Services/Submissions/JSJI .htm (last visited October 10,

2005).59. The American Psychological Association's psychology and law division (the American

Psychology-Law Society) publishes Law and Human Behavior six times per year. It is a

[Vol. 81:141




* aw Pol icy60

* Law Society Review61

* Law Social Inquiry6 2

* Supreme Court Economic Review (SCER) 63

* The Journal of Law Economics (JLE) 64

* The Journal of Legal Studies (JLS) 65

The list includes journals covering several social science fields as well as those

focusing on only one field in addition to law. Law and economics scholars should hold

a slight edge in the ranking because ALER, JLE, and SCER all actively seek to publish

multidisciplinary forum for research on the relationships between human behavior and thelaw, our legal system, and the legal process, and has published articles by scholars in numerousfields including law, psychology, sociology, and political science. See Law and HumanBehavior, Description, http://www.springeronline.com (follow North America hyperlink;

search search for Law and Human Behavior ; then follow Law and Human Behaviorhyperlink) (last visited Sept. 4, 2005).

60. The University of Buffalo Baldy Center for Law & Social Policy publishes LawPolicy which seeks [a]rticles [that] draw upon social science to examine the role of law inpublic policy both in the U.S. and abroad, andmay involve applied analyses of relevant data orcreative theoretical overviews reconceptualizing problems or policies. The Baldy Center forLaw and Social Policy, Law & Policy, http://www.law.buffalo.edu/baldycenter/lawandpolicy.htm (last visited on October 10, 2005).

61. Law Society Review the journal of he Law & SocietyAssociation, publishes workbearing on the relationship between society and the legal process and concerned with thecultural, economic, political, psychological, or social aspectsof law and legal systems. Law &Society Review, Journal of the Law & Society Association, http://www.lawandsociety.org/review.htm (last visited Sept. 4, 2005). Herbert Kritzer, Professor of Political Science & Law atthe University of Wisconsin, serves as editor of the quarterly publication. See i

62. The American Bar Foundation (ABF) publishes Law Social Inquiry. The quarterlyjournal features work that furthers the ABF's mission: the creation of objective empiricalresearch on law and legal institutions. The American Bar Foundation, http://www.abf-

sociolegal.org/index.html(last visited Sept.4, 2005). Northwestern University Law ProfessorJack Heinz and University of Chicago HistoryProfessor W illiam Novak currently serve as thejournal's editors. See i

63 Supreme Court Economic Review is an interdisciplinary journal thatseeks to provide aforum for scholarship in law and economics, public choice and constitutional politicaleconomy. George Mason University School of Law, Supreme Court Economic Review,

http://www.law.gmu.edu/econ/scer.html (last visited Sept. 4,2005). SCER is edited by faculty atthe George Mason University School of Law. See id.

64. The University of Chicago edits The Journal of Law Economics. The twice-yearlyjournal publishes research on a broad range of topics including the economic analysis ofregulation and the behavior of regulated firms, the political economy of legislation andlegislative processes, law and finance, corporate finance and governance, and industrialorganization. The Journal of Law & Economics, Description, http://www.joumals.uchicago.edu/JLE/brief.html (last visited Sept. 4, 2005).

65. The Journal of Legal Studies is one of two faculty-edited journals of law and socialscience at the University of Chicago (JLE is the other). JLS is a journal of interdisciplinaryacademic research into law and legal institutions. It emphasizes social science approaches,especially those of economics, political science, and psychology, but it also publishes the workof historians, philosophers, and others who are interested in legal theory. The Journal of LegalStudies, Description, http://www.journals.uchicago.edu/JLS/brief.html (last visited Sept. 4,2005).

2006]



INDIANA LAW JOURNAL

such work. Two of the journals are in the law and psychology field (BSL and LHB).The remainder cover more than one social science field.

These journals generally perform well in evaluations in which they are included.66

(Neither ALER, started in 1999, nor JELS, introduced in 2004, is old enough to beincluded in available rankings of legal publications. But they merit inclusion in theELS ranking because they specifically seek empirical work and have publishedprominent ELS scholars.) Fred Shapiro ranked specialized law reviews based on ajournal s total citations from 1981 to 1997 in the Social Sciences Citation Index(SSCI), which includes both social science and legal periodicals, and based on ajournal s per-article average ( impact factor ). 67 Chris Guthrie and I ranked 285secondary law journals, including three journals in the present study, based on thestatus of their authors in the 1990s.68 Unlike those two sources, Jim Lindgren andDaniel Seltzer ranked all law journals combined (general subject and specialized) andreported the top 40 based on SSCI data.69

Table 4. Journal rankings

Shapiro Law LindgrenShapiro impact faculty Seltzer

Journal citations factor status citations

Behavioral Sciences the Law 22 N/A

Journal of Law Economics 5 4 N/AOrganization

Judicature 14 29 N/A

Justice System Journal - N/A

Law Human Behavior 1 3 N/A 29

Law Policy - N A

Law Society Review 2 6 N/A

Law Social Inquiry 13 12 N/A 37

Supreme Court Economic Review - 8 N/A

66. The journals also do well in studies outside of aw. For example, JLEO is ranked 48thand JLE 49th in a ranking of 159 economic journals. Pantelis Kalaitzidakis, ThanasisStengosTheofanis P. Mamuneas, Rankings of Academic Journals and Institutions in Economics 1 J.EUR. ECON. ASS'N 1346, 1349 tbl.1 (2004).

67. See Fred R. Shapiro, The Most Cited Law Reviews 29 J. LEGAL STUD. 389 (2000).Eight of the eleven journals included in that study did well in Shapiro s ranking, which onlyincluded the top 30 journals in each ranking. Of he three journals that did not make the top 30 ,SCER was hindered by its late entry during this period: it began regular, annual publication in1995.

68. See George Guthrie, supra note 43. Of academic authors, elite law school professorsearned the most points for a journal in the study; thus, periodicals, like JLE, that routinelypublish social scientists fared relatively poorly. We excluded journals that were not affiliatedwith a single law school.

69. See James Lindgren Daniel Seltzer, The Most Prolific Law Professors and Faculties71 CHI.-KENT L. REv. 781 (1996).

[Vol 81:141



EMPIRIC L LEG L SCHOL RSHIP

Shapiro Law LindgrenShapiro impact faculty Seltzer

Journal citations factor status citations

The Journal of Legal Studies 3 4 10

The Journal of Law Economics 4 2 below 100 15

A law school receives credit for every article published between 2000 and 2004 bya professor who is on its faculty in 2003-04. If an author was at law school A in 2000when she published an article, but she was at law school B in 2003, then the article isattributed to law school B. The idea behind this ranking is to ask where each schoolstands today with respect to ELS and, in particular, the school s recruitment andretention of ELS scholars. An argument can also be made for including faculty basedon their institution at the time of publication, but I ultimately rejected this approach.Table 5 includes a per capita adjustment to the number of total publications.

Table 5. Top 10 law schools by per capita publications in peer-reviewed law and social sciencejournals

Percentage in school sRank Law school Per capita journal(s) (listed)

I University of Chicago 1.03 73 (JLS, JLE)

2 Cornell University 0.65 50 (JELS)

3 Harvard University 0.43

4 University of Pennsylvania 0.40

5 George Mason University 0.38 50 (SCER)

6 University of Southern California 0.33

7-tie University of California, Berkeley 0.31

7-tie Yale University 0.31

9 Northwestern University 0.30

10 Stanford University 0.26

Mean 16

NOTE: Publication totals are attributed to 2003-04 faculties.

B ELS Ranking

The overall ranking is based on the mean position of each law school in the threecategories. This unweighted score treats each categoryequally. One could argue that acertain category is more important than others and thus should be weightedaccordingly, but I choose to includethe categories unweighted. (Motivated readers cancreate their own weighted rankings using the information in the appendix.)

2006]



INDI N L W OURN L

Table 6. Complete ELS rankings

LS aw school LS aw school

1 tie

I tie

I tie

I tie

5

6

7-tie

7-tie

7-tie

10

11

12

13

14-tie

14-tie

14-tie17

18-tie

18-tie

20

21

University of California, Berkeley

George Mason University

Northwestern University

University of Southern California

University of Pennsylvania

Cornell University

University of Chicago

Stanford University

Yale University

University of Michigan

University of Wisconsin

University of Illinois

University of Iowa

Columbia University

Emory University

Harvard UniversityUniversity of California, Los Angeles

New York University

Vanderbilt University

Indiana University-Bloomington

Duke University

22-tie

22-tie

24

25-tie

25-tie

25-tie

25-tie

29-tie

29-tie

31

32-tie

32-tie

32-tie

35-tie

35-tie

37-tie37-tie

37-tie

37-tie

37-tie

The ELS ranking, on the whole, is consistent with expectations. Each of the fourschools tied for the top spot has followed an explicit yet distinctive path that leads togreater ELS work. The University of California at Berkeley started a law schooldoctorate in jurisprudence and social policy in 1977, which in turn led to the hiring ofnumerous social scientists to work in the program.70 Henry Manne brought both hisLaw and Economics Center and its scholarly focus to George Mason University in1986 when he became lawdean and the school s intellectual life continues to reflectManne s ideas with a record number of economists on its faculty and publications in

70. ee University of California, Berkeley, JSP Program, http://www.law.berkeley.edu/jsp/ last visited Sept. 4, 2005 .

Boston University

University of Virginia

University of Minnesota

Fordham University

University of North Carolina

University of Texas

Washington University in St. Louis

College of William Mary

Georgetown University

University of California Hastings)

University of Alabama

Boston College

University of Georgia

George Washington University

Wake Forest University

Brigham Young UniversityUniversity of California, Davis

University of Notre Dame

University of Washington

Washington Lee University

[Vol. 81:141




ELS journals.71 David Van Zandt Dean of the Northwestern University School of Law,forecasts that [t]he research faculty of the future law school will be composed largelyof academics with a strong disciplinary training in one of the social sciences.., whoare also well-trained lawyers, and thelaw school has devoted significant resourcesto

hiring social scientists.72 The University of Southern California Law School hasestablished productive relationships with social scientists in other USC departmentsand at other Los Angeles universities through a remarkable number of jointappointments and two separate centers: the USC-Cal Tech Center for the Study of Lawand Politics, and the Center for Law, Economics and Organization. 73

The ELS Ranking does include a few surprises, however. The University ofChicago and Washington University in St. Louis, in particular, do not fare as well asexpected. The University of Chicago is considered the home of law and economics,and publishes ELS journals; yet few law professors held social science doctoratesand/or social science secondary appointments in 2003-04. While it does well on the

publication measure, nearly three-quarters of its publications are in the school s twojournals: the Journal of Law Economics and the Journal of Legal StudiesWashington University in St. Louis has an active empirical workshop series andseveral prominent social scientists-such as Lee Epstein, Jack Knight and AndrewMartin-who hold appointments in law but work primarily in other departments. Yetonly one social scientist was based at the law school in 2003-04, only one lawprofessor held a courtesy position in a social science department, and none of its lawprofessors published a paper in the thirteen journals of law and social science duringthe last five years.

The ranking, of course, has flaws. First, any datacollection includes somemistakesdue to measurement error. There are several sources of possible error in this study: Imay have missed articles, incorrectly classified faculty, or overlooked graduatedegrees. And published information may be inaccurate. I attempted to limit thesemistakes through redundancy: A research assistant and I independently coded each lawschool and we used multiple sources of information for each school. But errors willremain.

Second, the scores are static. Each school s position is based on its faculty in the2003-04 academic year, but nearly every school in the study gained and/or lost afaculty member over the last year. Several schools gained social scientists since the endof my study period. Yale University and Emory University, in particular likely wouldmove up several spots in an updated ranking based on recent hires. Moreover the

University of Pennsylvania, the University of Southern California, and Northwestern

71 SeeHenry G. Manne, An IntellectualHistoryof theGeorge M ason University SchoolofLaw (1993), http://www.law.gmu.edu/econ/history.html. I was a visiting professor at GeorgeMason Universityin the spring of 2000.

72. David E. Van Zandt Discipline-BasedFaculty 53 J LEGAL EDUC. 332, 335 (2003).Inthe interest of full disclosure, I was a member of the Northwestern law faculty from 2001through 2004, andI personallybenefited from Dean Van Zandt's vision. He granted me a year-long sabbatical to begin work on a political science doctorate shortly after I joined the lawschool.

73. See University of Southern California, USC-CalTech Center for the Study of Law andPolitics, http://lawweb.usc.edu/cslp/ (last visited Oct. 10, 2005); USC Center for Law,Economics and Organization, http://lawweb.usc.edu/cleo/(last visited Oct. 10, 2005).

6]



160 INDIANA L WJOURNAL [Vol. 81:141

University have hired remarkable numbersof social scientists into entry-level posts.We should see these schools rise in the publication ranking as these new, ambitiousscholars publish their work

CONCLUSION

Rankings can be fun. They provide us interesting information in an easily digestedform. But, they only tell us a limited amount about any particular school. Thus, Icaution, as any ranker should, that the ELS ranking is not a definitive statementon ELSwork at American law schools. But it is a place to start.

Appendix Alphabetical listof included law schools with ranks

ELS RankLaw Schools in alphabetical U.S. News Ph.D. Secondary Publicationsorder Rank 1) (2) (3) OVERALL

University of Alabama 40* 33* 22* 27* 33*

Boston College 29* 33* 22* 27* 33*

Boston University 23* 22* 22* 18 23

Brigham Young University 34* 33* 22* 34* 37*(BYU)University of California, 13 1 3 7 1Berkeley

University of California, Davis 33 33* 22* 34* 37*University of California, 38* 22* 22* 33 31(Hastings)University of California, Los 16 14* 15* 20 16Angeles

University of Chicago 6 12 1 7*

Columbia University 4 10* 22* 13 14*

Cornell University 12 8* 8 2 6

Duke University 10* 24* 15 21 21*

Emory University 23 20* 15* 16 17

Fordham University 34 24 22 27* 25*

George Mason University 38* 2 5 5* 1

George Washington University 20* 28* 22* 34* 35*

Georgetown University 14 28* 22* 26 29*

University of Georgia 31* 33 22* 27* 31*

Harvard University 2 20* 22* 3 14*

University of Illinois 27* 10* 4 18 12

Indiana University- 40* 16 15* 25 20Bloomington



2 6] EMPIRICAL LEGAL SCHOLARSHIP

ELS Rank

Law Schools in alphabetical U.S. ews Ph.D. Secondary Publicationsorder Rank 1) 2) 3) OV R LL

University of Iowa 23 14* 15* 12 13

University of Michigan 7 8 8 11 10

University of Minnesota 19 18 22* 27* 24

New York University 5 18 20* 15 18*

University of North Carolina 27* 26* 22* 23* 25*

Northwestern University 10* 2 2 9 1*

University of Notre Dame 20* 33* 22* 34* 37*

University of Pennsylvania 7* 4* 6 4 5

Universityof

Southern 18 6 16 1*

California

Stanford University 3 4* 11 10 7*

University of Texas 15 26* 22* 23 25*

Vanderbilt University 17 17 11 27* 18*

University of Virginia 9 28* 20* 13 21*

Wake Forest University 34* 28* 22* 34* 35*

University of Washington 34* 33* 22* 34* 37*

Washington Lee University 23* 33* 22* 34* 37*Washington University in St. 20* 28 11 34* 25

Louis

College of William Mary 29* 33* 22* 21 29*

University of Wisconsin 31 7* 6 16 11

Yale University 1 13 8* 7* 7*

NOTE indicates ties

an empirical study of empirical legal scholarship- the top law sc

Documents